Vol. 15 No.11 (November 2005), pp.968-971
INDIGENOUS TITLE: THE MABO CASE AND INDIGENOUS RESISTANCE TO ENGLISH-SETTLER
COLONIALISM, by Peter H. Russell.
Reviewed by Catherine Lane West-Newman, Department of
“It arrived like a tidal wave on the beaches of a country whose legal profession was still dominated by the myth that judges are – or at least ought to be – apolitical eunuchs who spin their judgments entirely out of legal whole cloth” (p.5).
In these terms, Peter H. Russell sets the scene for his exploration of MABO – the famous Australian Indigenous land rights case which extended, in two segments known as MABO (No.1) and MABO (No.2), over ten years – and explains its particular interest to him as a compelling and multilayered instance of judicial politics at work. The MABO 2 judgment, deciding the substance of the claim, was delivered in 1993. Depending on the respondents’ political and ideological positioning in the country, it was greeted with either enthusiasm, muted approval (especially by those Aboriginal groups who saw clearly that the ‘victory’ was likely to remain symbolic), or horror. The decision “challenged the vision of their country held by many Australians – that it is a political society formed by British settlers which non-British immigrants and native people have been allowed to join” (p.6). Twelve years later its place in Australian settler-Indigenous relations is still under construction. Certainly it represents a legal victory for the complainants and their supporters who brought the case. Equally certainly that victory has not translated into anything like the significant political and practical gains that some hoped for and many more wished to subvert.
The cover image and the shape of this book locate one man,
Eddie Koiki Mabo, at the heart of Russell’s exploration of indigenous resistance
to English-settler colonialism. This is the man whose determination, Russell
says, placed the question – ‘who owns
Russell’s argument is that that in bringing this fiction to
judicial determination MABO not only mounted an effective challenge to the
fiction but also introduced
In a somewhat unusual strategy for a scholarly work in this field, the book contains two entwined strands – the life of Eddie Mabo and a wide ranging exploration of the politics of indigenous rights in settler societies. As such, it is a book which skillfully moves between the local and the global, the general and the particular, to place the significance of the legal determinations known as MABO into the deep (deep) context of several hundred years, four countries, and a range of international commissions and committees. This strategy, which may be said to have something in common with Clifford Geertz’ notion of anthropological thick description, is an interesting and successful way of investigating issues of constitutional politics and law. I found that it not only adds new and telling detail but, more importantly enriched my thinking about material with which I am for the most part quite well acquainted.
Russell describes developments and ideas from the
international field of indigenous rights communities, for example the United
Nations Working Group on Indigenous Populations and its meetings which bring
together indigenous activists from around the world, to illustrate the kinds of
ideas to which Australian judges may now be exposed. He suggests that together
with their knowledge of significant decisions in other settler jurisdictions
these are, even when they deny it, “a strong influence on how they perform
their adjudicative role” (p.197). Optimistically he suggests that “the High
Court’s decision in Mabo opens up a new way of thinking about
Russell has a fine grasp of the issues and paradoxes that bedevil attempts to assert, [*970] from within an imposed (and superseding) legal system, a conceptual construction of indigenous peoples’ rights grounded in and affirming, not in sameness but meaningful difference. He is able to explain them clearly and give a clear sense of just how significant, in litigation of this kind, is the difference between formal and substantive conceptions of equality. He eloquently makes the crucial point, which is so often disregarded in policy and public debates, that in certain circumstances (especially for indigenous peoples in settler societies) the right to be equal entails “protection of the right to be different” (p.212). Furthermore, he states clearly that “the ideal of equality as requiring identical rights for all citizens has been an ideological barrier to recognizing the distinctive rights of Indigenous peoples in all the English-settler countries” (p.212). In general he attributes the adoption of such a position to incomprehension rather than willful denial – an interpretation perhaps more charitable than some of the protagonists deserve. But the central point remains: such clarifications are valuable and deserve wide dissemination in scholarly and public debate.
There is, of course, always something to quibble about in even the most excellent book. So I would observe that the kind of epistemological position which accepts that facts can be “constructed through entirely different cultural lenses” hardly deserves a (pejorative?) attribution to the work of ‘postmodern deconstructionists.’ Anthropologists and sociologists of knowledge have a longstanding awareness that meaning is culturally constructed.
A second point of concern is an impression which may be
created though the way in which
The clear and sparse writing communicates easily as it
defines and explicates the issues through simple but [*971] never simplistic
analysis and description. Unusually, for
such a scholarly work, the characters come to life in a manner more common to
fiction – indigenous complainants, lawyers, and judges all have recognizable
points of view and feelings. The accessibility
this gives to even quite abstruse points of constitutional law generates an
energy and readability quite uncommon to the field. The book would, for this
reason, as well as for its extensive coverage of the central issues of
colonialism and aftermath for indigenous peoples in
And finally, I note with interest how the proliferation of on-line (virtual) knowledge sharpens the mind to the pleasures of the real world book as object of pleasure. Pleasingly produced, with a wonderful cover photograph of its central character, this is just such an object.
Clifford. 1983. LOCAL KNOWLEDGE: FURTHER
ESSAYS IN INTERPRETIVE ANTHROPOLOGY.
© Copyright 2005 by the author, Catherine Lane West-Newman.